Category Archives: Bad Law

Every so often one gets confused reading the newspapers. Some things are reported which are undoubtedly false. Some things are mistaken. Sometimes the writer of the article seems not to understand what they are writing about.

And, with that preamble, I am confused by a story today reported in the Mail Online. Regular readers will know that the Mail Online is far from my favourite news outlet, although, as it is one of the most “popular” news websites in the world, I suspect those in charge are not bothered what I think.

Today’s story refers to the former “call girl” who went by the nom de plume of “Belle de Jour” and whose exploits were recounted in a blog and then in book form. She was then revealed to be Dr Brooke Magnanti, a research scientist. Her role was played in the TV adaptation of her writing, by Billie Piper. Continue reading →

After a flurry of anger on Twitter and elsewhere about this “leak” to Mr Thomson, and even more misplaced anger by people who thought this meant the appeal itself had been decided, Mr Thomson published a blog post on the subject. You can find it here.

As far as leave to appeal being granted was concerned, no one I spoke to with knowledge of the appeal system thought that the application for leave would be refused. An appeal can only be taken forward on a question of law.

What, some have cried, was the question of law in this case?

The answer to that question is very simple. (Though the answer to the legal question is not).

Put simply the majority interpreted the legislation and case law to allow them to look at the form of what was done whilst the minority judge applied the same law and reached the conclusion that the substance of what was done was more important than the form.

Therefore there is a clear distinction about how the law should be applied.

I am delighted to have seen that the Lallands Peat Worrier has written about the problems the possible new prosecution of Mr Sinclair will face in relation to the above notorious case. As always, he makes his points succinctly and clearly (qualities which from time to time fail me). I will therefore not bother with the 5,000 words I was planning, but instead would commend LPW’s article to you.

His post starts:-

“Only a numpty would fail to discern the semantic difference. Contrast the phrase: “we are investigating the possibility of a retrial” and “a retrial will definitely happen”. The first formulation certainly suggests serious-minded application – a searching search rather than a dawdling, half-hearted intention to review an acquittal – but for the Scotsman to headline yesterday’s developments in this morning’s paper as “World’s End murders accused set for retrial” is appallingly irresponsible.”

Put shortly, I agree with his points regarding the hurdles the case faces in connection with getting over the hurdles of overturning the acquittal.

It is interesting that, even though the Scottish Law Commission recommended abolotion of the “double jeopardy” rule, they did not suggest making the change of retrospecyive effect.

However the SNP Executive decided to ignore that recommendation, and to make the legislation retrospective. There are major legal issues about retrospective legislation in criminal matters, and as is often the situation it appeared that that provision was brought in specifically to deal with one particular case.

It is rare in my experience that legislation introduced with one case directly as its target achieves its purpose – after all, the new law applies to all cases, not just the cause celebre du jour.

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Back in the days when commenting on issues of the day involved sending a letter to a newspaper, I did so in relation to this case.

“The authority of any legal system depends on the respect it commands. This does not mean that every decision has to be popular. It does mean that decisions should be comprehensible. Sinclair’s guilt for the murders of Christine Eadie and Helen Scott has not been proven. What you or I happen to believe is, like it or not, of no account. Just as important, however, is the fact that vast doubts still hang over Sinclair’s innocence. The old formula does not apply.

Confidence in the courts and the Crown Office has been undermined badly. Neither institution is entitled to behave as though the fact is of no account in its august proceedings. The public, whom justice serves, has been insulted. What might we do about that?” Continue reading →

Some extracts from the release are below in bold, with my comments in plain text.

The Act will come into force on March 1 to stamp out offensive and religious hatred at football.

The long title to the Act is – “An Act of the Scottish Parliament to create offences concerning offensive behaviour in relation to certain football matches, and concerning the communication of certain threatening material.”

That differs from the stated focus of the Act as per the press release, as it is a wider range.

In addition, according to the release, the Act will stamp out offensive hatred and religious hatred at football. I am not sure if there is “inoffensive” hatred. And the Act extends far further than “religion”.

Indeed as I have said before, “religion” is not the problem, unless support, especially for Rangers and Celtic, is seen as “religious”.

It is good to see that the aim is high – stamping out hatred. Is “hatred” now illegal?

The legislation responded to calls from Scotland’s police and prosecutors and gives them additional tools to crack down on sectarian songs and abuse at and around football matches and threats posted on the internet or through the mail.

Graeme Pearson, MSP, is a former police officer, latterly head of the Scottish Drug Enforcement Agency. In the Committee stages of the Bill, he pointed out that the police would never decline greater powers. The same applies to prosecutors.

Is the position of the present Executive that the police and prosecutors will be given whatever powers they seek? Is the default position that, if the police and prosecutors ask for something, it is, by definition, necessary?

This is even more of a concern where the Crown Office, which is in charge of the Scottish prosecutorial system, is in the hands of career prosecutors. The present Lord Advocate, Frank Mulholland, and his predecessor, Dame Elish Angiolini, were both career prosecutors, working their way up through the ranks of procurators fiscal.

This trend (if two example can be considered a trend) is a change from the practice from before, stretching back hundreds of years. The Lord Advocate was appointed from the Scottish Bar, and whilst they would have had experience in Crown Office as a prosecutor, they would also have had a broader practice. They were independent of Crown Office, whilst heading it up.

As the great CLR James wrote in his book “Beyond a Boundary”, “What do they know of cricket, who only cricket know?”

What do they know of prosecution who only prosecution know?

The present and immediate past Lord Advocates are not unqualified for the role. However, the fact that they have had no experience elsewhere ought to have rendered them disqualified for the post.

The release also states that the new rules were needed as “additional tools” but surely the existing tools were sufficient?

This week has seen the imprisonment of David Craig for 14 months after admitting behaving in a threatening or abusive manner likely to cause fear and alarm by posting images and messages of an offensive, threatening and sectarian nature. He was dealt with under the “old” law.

Supt David Brand, head of the Football Coordination Unit Scotland, said: “On the day that the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 has come into force, this sends a strong warning to others who might think about posting such vile, abusive and threatening comments on Facebook, Twitter or indeed any other online site.”

I know that Supt Brand is a dedicated and excellent police officer. However, his statement seems to miss the point. Mr Craig is in prison as a result of the “old” law. That was sufficient to allow him to be prosecuted and imprisoned. The new Act makes no difference to that.

There have been regular reports of people being arrested for “offensive chanting”.

Where are the “criminals” who could not be prosecuted because of the new law not being yet in force? Continue reading →

The days of the Christmas holidays are light for news. Newspapers are desperate for articles to take up column inches. Private Eye’s own Polly Filler columnist would be engaged 24/7 at this time of year, should she wish.

It is therefore not surprising to see political stories running in the press because, as most politicians are on holiday, and Parliament is not sitting, there is little chance of stories being questioned seriously.

This morning there are three stories I have seen (there may be more elsewhere too) about criminals being compensated for their injuries. These can be found in the Daily Mail, the Daily Telegraph and the Independent. Click on the names of the papers for the respective stories.

On the face of it, there is a “scandal” taking place which must be stopped. No right thinking person reading the articles could fail to agree that “something must be done”. However, the pieces all seem to be blatant attempts at government spin, ignoring the present legal position, and in fact, apparently, though inadvertently disclose a far greater “outrage”.

What we have, it appears, is a Ministry of Justice (MoJ) attempt to look tough on criminals by denying them compensation for ridiculous injuries, including, for example, Ian Huntley being compensated for being attached in prison, as this keeps money from innocent victims who in fact are left owed huge sums by the Criminal Injuries Compensation Authority (CICA). The “official sources” quoted however fail to disclose the reality of the rules of the CICA scheme just now, and attempt to conflate two entirely different issues in an effort to appear even tougher on the convicts and jailbirds. The spin is to create a sense of outrage, and having done so, to emphasis that the Coalition is not going to let this continue.

The “source” has also taken the chance to take a kick at Legal Aid, which is generally not a topic people want to support, unless they, or someone close to them, are being denied help for a vital legal battle.

The MoJ seems successfully to have worked on the basis that hard pressed newspapers, especially those without correspondents with relevant legal backgrounds, simply cannot devote the time and resources to having a Government inspired “story” subjected to detailed critical analysis.

The articles are written by Tim Shipman, Martin Evans and Oliver Wright respectively. I do not intend to criticise any of these journalists who, I am sure, are excellent practitioners. However the story seems to me anyway to be an exercise in the Government getting out a story for headline effect, whilst hoping no-one will actually look too closely at what they are saying.

A Brief History of Criminal Injures Compensation in Britain

In 1964 the Government established the Criminal Injuries Compensation Board (CICB), to pay compensation to victims of violent crime, based on an assessment of what victims would have received for their injuries if pursuing claims in a civil court. This was the commencement of what was, and remains, the most comprehensive system for compensating victims of crime in the world, a fact of which successive governments should be proud.

In the mid 1990’s, as a result of concern about the increasing costs, the Conservative Home Secretary, Michael Howard, brought in a revised “Tariff Scheme” where set amounts of compensation were to be paid for specified injuries. The new scheme was overturned by the High Court, after a challenge by various Trades Unions, but was, with some amendments, reintroduced and in 1996 the CICA was born and took over from the CICB.

The Scheme has been revised on various occasions, most recently in 2008, though it seems further revisions are on their way.

Now victims of crime who suffer injury can receive a maximum award of £250,000 for their injuries and a maximum additional sum of £250,000 for financial losses, as long as various conditions are satisfied.

However, as a function perhaps of present day society, the numbers of claims continue to increase year after year, and despite various efforts to streamline the claiming process, there are delays endemic in the system.

The CICA only makes news after a large tragedy, like the London bombings, when it gets criticised for delays, or hen apparently perverse decisions are made. An understanding of the scheme would render these apparently odd decisions clear (in most instances).

It is of note, before we get to the legalities, that the pieces have the following similarities.

1 Each is illustrated with a picture of convicted murderer Ian Huntley.

2 All three refer to him claming £15,000 for having his throat slashed in prison.

3 Each quotes “a senior source close to Kenneth Clarke”. The Telegraph attributes its quote to what the source told the Mail, but the Independent does not.

4 Each has the same quote from a “Ministry of Justice spokesman” (presumably not the senior source close to Mr Clarke).

5 All the articles refer to £5 million per year being paid out to convicted criminals, or “jailbirds” as the Mail refers to them.

6 Two of the pieces (Mail and Independent) also have a quote from Philip Davies, a Conservative MP complaining about the “outrage and scandal” of taxpayers’ money being “wasted on compensating criminals”.

One difference, in keeping with the respective papers’ philosophies, is that the Independent quotes the Prison Reform Trust and NACRO putting the case against the changes. No such “balance” appears in the Telegraph or the Mail. (Though, to be fair, that would not be expected anyway on an issue like this.)

So what is being suggested?

Even though all three pieces come from the one origin, one assumes, the detail is not on all fours.

The Mail states that “Convicted criminals will be banned from claiming compensation for their injuries…Ken Clarke will announce plans to ensure the money goes to victims of crime rather than criminals…Every year criminals claim around £5 million from the CICA”.

The Mail refers to “controversial claims in which burglars have demanded money for injuries sustained while escaping the scene of the crime.” The Mail states “Thousands is (sic) also paid out every year to criminals who sustain injuries in prison as a result of feuds and drug-fuelled violence”.

The Telegraph goes further, stating that “In some of the most extreme cases burglars, who have been hurt as they escape the scene of a crime, have received payments”.

The “official figures” and the detail around them quoted in the pieces are of interest too.

According to the Mail, “340 inmates made successful claims for injuries resulting in payouts and costs of £3.1 million last year. More than 3,000 prisoners made claims…Another £2 million was claimed by convicted criminals who are not jailed. Most of the payouts for jailbirds are for injuries caused by trips, falls or slips as well as accidents while playing sport.”

The Telegraph also refers to the applications covering “a range of injuries and activities, but included slips and falls and also accents while playing sport.”

All three articles refer to the lack of money available to the CICA for compensating victims of crime, and the impression is clearly given that dealing with, and paying, these criminals is a reason for, as the Mail puts it, “Almost 50,000 victims of violent crime have been kept waiting for compensation worth in excess of £600 million because the compensation authority has run out of funds. They include the children of murder victims and others who need the money to cover medical bills and compensate them for their disabilities and lost wages. Some are owed up to £500,000 after being crippled by vicious thugs.”

So what is wrong with the articles?

Why Do All These Criminals Get These Payouts?

They don’t!

First of all, there are two targets, and only the Mail piece makes clear that one of them remains untouched. The CICA only deals, as the name suggests, with “criminal injuries”. Slips, trips and falls, and sporting injuries are nothing to do with the CICA. They are negligence claims. If a prisoner, or indeed anyone else in prison, suffers injury there which is the fault of another party, then a negligence claim can be pursued and, if blame can be established, they would be entitled to compensation. These are civil court matters, dealt with in the normal way. Mr Huntley has as much right to pursue such a claim as anyone else, although ay damages he might receive could result in legal action for damages being taken against him by his victims’ representatives.

The civil courts would not reduce any award of damages because the victim was a convicted criminal. The “source” does not appear to suggest any change in that principle.

The target therefore is the CICA system.

However, the scheme, dating back to the days of the CICB has always taken account of criminal convictions! Under the initial scheme, the CICB was empowered to take account of the applicant’s “character, conduct and way of life, as evidenced by their criminal convictions” even where the convictions had nothing to do with the incident in which the injuries were inflicted. Over the years I conducted a number of appeals for clients where awards of compensation had been either reduced, or refused entirely because of convictions, and, as was said by more than more than one member of the Board “Why should we pay compensation to someone who has probably already cost the CICB in compensation for someone else?” It is hard, in general, to argue with that principle, which has been a part of the criminal injuries regime since 1964! However, the CICB allowed the exercise of discretion. In one case, I acted for a man who had been imprisoned for a number of years at a young age. He had lived his next 35 years after his release as a model citizen. The CICB decided that it was in the interests of justice to make him a full award. He was credited for having made a radical and positive change in his life.

Equally I know of cases where a family member claiming compensation for the death of a child was refused, because of the father’s own criminal record, and also where the family was denied compensation following the murder of their child due to the child’s “offences” which had led him to appear before the Children’s Panel.

Criminal convictions have therefore always been one of the factors to be considered.

When the tariff scheme was created there was also the inception of the “Penalty Points” system. The discretionary element all but disappeared. There is now a sliding scale of percentage reductions from any award based on the number of penalty points the claimant has.

The scale is detailed on pages 62 and 63 of the Guide to the CICA Scheme. The scale make sit clear that the “problem” of criminals obtaining criminal injuries compensation is already well covered.

A 10 point count reduces the award of compensation by 100%.

What results in 10 points? Any sentence of imprisonment results in 10 points for the duration of the sentence imposed. This applies even if the sentence is suspended, or there is early release. In addition, even after the sentence has been served, there is a sliding scale of points. Obviously multiple offences make it even less likely that a claimant will receive any award.

Mr Huntley, who is serving a life sentence, will therefore have a 100% deduction applied to any award of compensation for criminal injuries otherwise made to him, unless exceptional circumstances can be shown. In light of the drafting of the scheme, the only “exceptional circumstances” considered would be where he was injured in the course of preventing crime, or assisting the police or other authorities in preventing crime.

Even at the other end of the scale, a criminal conviction resulting in a fine of £250 or less, results in 2 penalty points (a 15% reduction) for 2 years from the date of sentence, and 1 point (10% deduction) form 2 years till the conviction is spent.

The scheme therefore covers far more than “jailbirds”. The case mentioned above, where the claimant had lived free of trouble for 35 years, would, under today’s rules, have resulted in 5 points and at least a 35% reduction from any award.

Anyone in prison who receives an award from the CICA has gone through a rigorous process to get there and will have had any award reduced to some extent. In addition, they must have been successful in satisfying the “exceptional” circumstances test.

Who is a Criminal?

As Mr Davies, MP, suggests, we should be concerned about “criminals” getting money due to innocent citizens. But the penalty point scheme goes all the way down to dealing with cautions and absolute discharges! Does Mr Davies, or the MoJ intend to prevent anyone with an unspent conviction, of any type, from pursuing a Criminal Injuries claim? If so, it would be a surprise quite how many people were to be excluded.

The scheme keeps in place, but with the more draconian penalty point system, the restrictions on claims in fatal cases. The criminal convictions of both the deceased and of the claimant come into play.

It is a matter of policy whether or not family members with criminal records (even for trivial matters) should be compensated for the killing of a close relative. The papers report every so often an aggrieved claimant who falls foul of this rule, and generally the reports focus on the unfairness of the decision. However, it all depends who you classify as a “criminal”. Mr Davies wants a wide net cast. Is that fair?

Do Escaping Burglars Get Compensation?

The reports, especially those in the Mail and Telegraph, look to show the ridiculous things which result in criminals being paid. Suggestions that there are people “demanding” payment for being injured when escaping, and according to the Telegraph being paid, seem daft. It might be that, in one or two specific cases there have been circumstances justifying such awards, whether by Criminal Injuries or via negligence. I suspect that is all of that type there have been, if indeed any exist.

The Tony Martin case, where Mr Martin was imprisoned for shooting an escaping burglar in the back, was one of the rare cases where such a claim might possibly be successful, even to a small degree.

In fact, I am surprised that health and safety was not mentioned by the Mail!

Don’t These Cases Delay Justice for Everyone?

The figures also make clear that, despite the impression given, the CICA is not gummed up dealing with all of these prisoners’ claims. They make up a small percentage of the total case load and an even smaller percentage of the payments made.

People are not sitting waiting for decisions simply because prisoners make claims. If people in the 10 point category were barred from applying, it might save some administrative time, but on the other hand, some of these people might still apply, and their applications would still need to be weeded out of the system.

Financial “Errors”

The Mail refers to payments plus costs, which ignores the fact that no costs are paid. Any legal fees charged to the successful claimant come out of the compensation awarded.

The Mail also states that Government “sources” describe the present system as a “shambles” overspending by £50 million per year. The Labour administration is blamed.

The system in place however is one created in 1996 by the Conservatives. The annual report for 2010-2011 linked above shows that significant progress has been made in shortening administrative delays. However, the cost of the system in payouts goes up as more and more people apply!

From my own knowledge of the system I would not say that it was an unduly extravagant one as far as running costs were concerned. The staff of the CICA at its Glasgow HQ were always as helpful as they could be, bearing in mind they enormous workload they had.

Blaming Labour for the “overspending” seems to be a cheap party political point, designed to appeal to the Mail readership, as I am sure it did.

Rights of Prisoners

It should be said also that, if a claimant succeeds in a Criminal Injuries claim, and later received damages through an insurance company or civil court for the same injuries, then the CICA is reimbursed.

Not every prisoner attacked in gaol will have been a victim of negligence by the prison authorities. However, in the case of prisoners such as Mr Huntley, his very notoriety, and the evil of his crimes, in fact makes it easier for him to succeed in such a claim. The prison authorities would find it very hard to say that they were not aware of risks and threats to him, more than to other criminals, and as such need to put in place greater security measures.

As the spokesman for the Prison Reform Trust said in the Independent, a gaol sentence does not deprive someone of all their rights.

Unless the Coalition wants to move to a Fort Apache: The Bronx style of prison regime, than they have to be able to protect prisoners, as far as is reasonable. The authorities have a duty of “reasonable care”. They need to fulfil it.

Legal Aid

The Mail also has a sly dig at Legal Aid. It states that “The legal aid bill for convicts has doubled in two years to £21 million – although that sum also covers those demanding release from jail and softer punishments.”

The latter half of that statement seems to describe legal aid for appeals! Does the Mail want convicts to be told that they have no right to assistance from lawyers if they think their conviction is wrong or unsafe, or if the sentence imposed is excessive?

If the Crown appeal on the basis that a sentence is too lenient does the Mail believe that no representation is needed, as the court will see to fair play?

The answers to the above are probably yes, but that should not be the determining factor for the country as a whole.

This is spun though as the Coalition “trimming” the Legal Aid budget as part of its austerity measures. Trimming is a word with few of the unpleasant connotations of “cutting” isn’t it?

What is the Real Scandal?

First of all, I do not think there is a real scandal here. But if there is, then the Mail report completely misses the point.

The article states ”Almost 50,000 victims of violent crime have been kept waiting for compensation worth in excess of £600 million because the compensation authority has run out of funds.. Some are owed up to £500,000 after being left crippled by vicious thugs.”

If the government run and funded scheme was actually lagging to that extent, as a result of dealing with prisoners’ claims, as the article implies, this would be a disgrace. Indeed any reason for such a delay would be unacceptable. The impression is given that almost 50,000 people have been awarded money, up to £500,000 but have not been paid as the fund is empty.

That is simply not true. The CICA has a budget, but as the payments it makes are dependent on the level of claims assessed, it does not “run out of money” any more than the DWP would run out of money for benefits.

Read the Annual Report for yourself. If the situation was as bad as the “senior source” makes out, one wonders (a) why it has taken this length of time for the Government to speak out and (b) why the only matter being addressed relates to claims by criminals.

In Conclusion

We have a blatant effort by the MoJ to get good headlines, by relying on the pressures on newspapers not actually to look at what is proposed and to analyse it.

As I state in the heading, I am not sure of this counts as Bad Law on the part of the press, or blatant political spinning, with a bit of “churnalism” as defined by Nick Davies in “Flat Earth News” thrown in.

In any event, it fails to give anything like an accurate picture of the problem and simply blames the bogeymen of convicts, lawyers and the Labour government for the present issues.